Delhi District Court
State vs . Dalip Kumar Etc. on 23 November, 2007
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IN THE COURT OF SHRI POORAN CHAND
METROPOLITAN MAGISTRATE:
ROHINI COURTS:DELHI
FIR No.411/88
P.S. Tilak Nagar
U/s. 420/468/471/34 IPC
State vs. Dalip Kumar etc.
Sl. no of the case : 468/2
Date of commission of : 15-03-88
offence
Date of institution : 12.10.90
Name of Complainant : S.K. Arora S/o Desh Raj Arora R/o E-
220 Lajpat Nagar Ist N. Delhi
Name, parentage and : 1. Dalip Kumar Singh S/o Desh Raj
address of the accused R/o WZ-175 Saha Pura Tilak Nagar
Delhi
2. Ranjeet Singh S/o Tirlok Bhatia R/o
F-411 Vikas Puri New Delhi
Offence complaint of : U/s 420/468/471/34 IPC
Plea of accused : Pleaded not guilty.
Final order : Acquitted
Date of reserve of order : 23.11.07
Date of order : 23.11.07
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION
1. The accused persons Dalip Kumar and Ranjeet Singh were charged on the allegations that both the accused in furtherance of their common intention in between 15.3.99 to 05.09.88 cheated S.K. Arora the complainant fraudulently by inducing him to deliver genuine papers of plot No.10, village Nangli Khasra no.33/9, 200 2 yards on the pretext of selling the same and both the accused further fraudulently forged his signature on the receipt, documents. GPA etc. and handed over these documents to Sunil S/o Chand Ram knowingly the same to be forged one and used these documents as genuine and obtained Rs.22000/- from Sunil Kumar for the said plot for which accused persons have no right to sell and both thereby wrongfully gained the amount and wrongfully caused loss to S.K. Arora of the said plot and thereby both the accused committed an offence punishable u/s 420/468/471/34 IPC and within my cognizance.
2. Later on vide order dt.17.5.07 the charge was amended stating that both the accused in furtherance of their common intention in between 15.3.99 to 05.09.88 cheated S.K. Arora the complainant fraudulently by inducing him to deliver genuine papers of plot No.10, village Nangli Khasra no.33/9, 200 yards on the pretext of selling the same and both the accused further fraudulently forged the signature of complainant on the receipt, documents. GPA etc. and handed over these documents to complainant knowingly the same to be forged one and used these documents as genuine and obtained Rs.22000/- from Sunil Kumar for the said plot for which accused persons have no right to sell and both thereby wrongfully gained the amount and 3 wrongfully caused loss to S.K. Arora of the said plot and thereby both the accused committed an offence punishable u/s 420/468/471/34 IPC and within my cognizance.
3. In order to prove its case prosecution has examined PW1 S.K. Arora who has stated that he knows both the accused as both were in the same trade in he was. At the relevant time he was dealing in purchase and sale of old cars. In the year 1986 he purchased a plot of land of 200 sq. yards at Arjun park Extension plot no.10 Village Nangli Sakrawati. The plot was of one Sunil Kumar and he has purchased this plot through both the accused persons. It was purchased at the rate of 210/- per sq. yards and total sum of Rs.42000/- was paid by him. The payment was made by him in the registrar office Kashmiri gate and documents were also prepared. He further stated that after about year of the purchase of the plot he was in the need of money. He approached both the accused for disposing off the aforesaid plot. On request of the accused he gave all the documents of plot to them except receipt kept by him. Accused assured him that they will get his plot disposed off at the rate of Rs.300/- sq. yards within one week time. After a week he approached the accused but they returned his documents saying that they have not been able to find any buyer. After about one or two months he 4 approached one property dealer named Pooja Properties at vikas Puri who after seeing his documents said to him that same are not the correct original documents of the plot. He also disclosed to him that accused persons sold this plot to Chand Ram and had handed over the original documents to him. He approached Chand Ram who told him that both the accused had approached him and he has already given a sum of Rs.22000/- to the accused persons and they have delivered the documents of the plot to him. His complaint is ex.PW1/A which bears his signature at point A. Before filing of the complaint he had approached the accused persons for returning of the money but they refused and told him to come and collect the amount . Both the accused persons were arrested on 22.9.88 by the police on his identification vide memo ex.PW1/B and 1/C which bears his signature at point A. He had given the documents given by the accused to the IO which were seized. He further states that when he approached the accused persons after a week then they told him that they are not in a position to sell his plot and they handed over him his documents saying that they have not been able to find any buyer. But these documents were not genuine . After lodging the complaint he handed over those documents to IO. IO seized the same vide memo ex.PW1/D which bears his signature at point A. Documents are 5 marked as questioned paper A3,Q3, Q1, Q2, Q5 and Q6. On 22.9.98 during police investigation when accused Ranjit was arrested by police he made disclosure statement which is ex.PW1/E which bears his signature at point A. During investigation one Sunil Kumar also handed over original documents pertaining to the plot to IO and IO seized the same vide memo ex.PW1/F Police also recorded his statement from time to time.
4. PW2 Inspector Anil Kumar who has stated that on 22.9.88 he received a complaint ex.PW1/A by the orders of SHO and he entered the same at point B and handed over the same to duty officer for registration of case FIR who registered case FIR No.411/88 and handed over him carbon copy of the same which is ex.PW2/A. He took further investigation and complainant handed over to him duplicate papers of the documents to the plot and he seized the documents vide memo ex.PW1/D. One Sunil Kumar met him and he handed over a receipt of Rs.42000/- which he seized vide memo ex.PW2/B. Sunil Kumar also handed over to him original documents and he seized the same vide memo ex.PW1/F. On the same day on the pointing out by the complainant both the accused were arrested vide memo ex.PW1/C and 1/D. During investigation both the accused persons made disclosure statement . He also took specimen 6 signature of Ranjeet vide memo ex.PW2/C and specimen signature of Sunil Kumar vide memo ex.PW2/D and specimen signature of Dalip vide memo ex.PW2/E. He recorded the statement of witnesses. During investigation he sent the specimen signature and questioned documents to CFSL and later on CFSL result was obtained and challan was prepared and submitted for trial of accused persons.
5. PW3 V.K. Khanna Principal Scientific Officer has stated that documents in this case had been submitted for examination to him vide letter dt.27.11.88. These documents were carefully examined by him with scientific aids and he proved his report as ex.PW3/A which bears his signature at point A.
6. PW4 Sh. Chand Ram who has stated that on 22.5.87 his son Sunil Kumar sold the plot measuring 200 sq. yards to Surinder Kumar Arora at the rate of Rs.210/- per sq. yards and total a consideration of Rs.42000/-. His son obtained the said amount of Rs.42000/- in the office of Sub Registrar . This plot was sold to Surinder Kumar through Dalip Kumar accused. After 5/6 months both the accused came to his house and sold the said plot to his son and also handed over the papers which were bearing the forged signatures of Sh.S.K. Arora . After some days S.K. Arora came to them and enquired about the papers. He told them that both the 7 accused obtained the documents for some clarification and they did not returned the same to him. When they again purchased their plot accused Dalip Kumar shows himself as S.K. Arora . IO recorded his statement. Police recorded his statement. He also proved the disclosure statement of accused ex.PW1/E and IO obtained the signature of Ranjit accused and Sunil Kumar vide memo ex.PW2/C and D both signed by him at point D. Original papers were seized vide memo ex. PW2/F signed by him at point B. Signature of Sunil Kumar were obtained vide memo ex.PW2/D signed by him at point B. and Dalip Kumar vide memo ex.PW2/E signed by him at point B, accused Ranjeet were obtained vide memo ex.PW2/C signed by him at point B. IO recorded his statement.
7. PW5 Sunil Kumar he has stated that in the year 1987 they sold out their plot to one S.K. Arora through accused Dalip and Ranjeet present in the court today for a consideration of Rs.42000/-. They executed the relevant papers in the office of Sub Registrar in the name of Surinder Kumar Arora. They only received amount of Rs.22000/- and documents were handed over to Dalip Kumar who assured us the remaining amount of Rs.20,000/-. After 4/5 months Dalip and Ranjit again approached them and handed over them the registered documents stating that earnest money given to them 8 (Rs.22000/-) be handed over back to Dalip as they are not interested in that plot. They handed over Rs.22000/- again to both the accused and again documents were in his name and Dalip signed those documents. Thereafter about 15 days S.K. Arora approached them regarding that plot but they told him that they had already given the money back to Dalip and Ranjit who had sold the plot again back to them. Later on police also recorded his statement.
8. PW6 HC Shyam Lal who has stated the same story as told by PW2.
9. After that no PW was examined in this case by the prosecution. Hence Prosecution Evidence was closed. Both the accused persons were examined u/s 313 Cr.PC read with section 281 Cr.PC. Both the accused persons stated that they have been falsely implicated in this case. Both the accused did not lead evidence in their defence.
10. I have heard arguments from both the parties and have gone through the evidence lead by prosecution. I have also gone through the written submissions filed by accused Dalip Kumar.
11. Both the accused persons have strongly pressed their arguments on the point of admissibility of testimony of PW1 Surinder Kumar Arora, complainant , PW2 Inspector Anil Kumar IO, PW3 V.K. 9 Khanna from CFSL department and PW4 Chand Ram on the ground that initially both the accused persons declared Proclaimed Offender in this case and the evidence of above named witnesses were recorded in their absence and after that accused persons were arrested and charge was framed on 6/12/01 against both the accused persons. All these witnesses were called again on different dates and directly tendered for cross examination as their examination in chief were already recorded in the absence of accused persons. All these witnesses were cross examined by accused persons at length. Now it is argued that evidence of above named witnesses is inadmissible in evidence because after appearance of accused persons before this court examination in chief of all these witnesses are required to be recorded afresh as these witnesses were not tendered under examination in chief they were tendered directly to cross examination. Hence their evidence is inadmissible . To substantiate their arguments they have relied a case law 1999(1) JCC Delhi 15 State(Delhi Administration ) Vs. Som Parkash where in it is held that Criminal Procedure Code, 1973-Section 299-Offence u/secs. 302-307r/w Sec.34 of I.P.C. - Sc. 299 Cr.P.C. Is an exception to the general principle that the entire evidence against an accused should be tendered in court in presence of accused - Object of this provision 10 is to protect the evidence against the accused who is not likely to be available to a later stage - Conditions for recording evidence u/sec. 298 Cr.PC are four in numbers firstly if the witness is dead, secondly incapable of giving evidence , thirdly accused is not found and lastly his presence cannot be procured without an amount of delay, expense or inconvenience.
Penal Code , 1860- Sections 302, 307 r/w Sec.34- Co-accused already acquitted Present co -accused absconding since then- Hence evidence of witnesses was directed to be recorded u/sec.299 Cr.P.C. -Now question arises whether that evidence u/sec.299 Cr.PC is admissible in evidence against the present appellant- From the facts on record it cannot be said with certainty that the witnesses whose evidence was recorded u/sec. 299 Cr.PC are not available now - From the facts it appears that police has not laboured honestly to procure these witnesses - Hence the evidence u/sec.299 Cr.PC held to be inadmissible in evidence trial court acted with material irregularity in admitting this inadmissible evidence Therefore, in the circumstances the evidence was inadmissible in evidence and so the conviction and sentence of appellant as awarded by Sessions court set aside- Appeal allowed.
It is also argued by accused persons as all these witnesses were alive therefore condition mentioned under 299 Cr.PC is not fulfilled and in 11 view of section 33 of Indian Evidence Act evidence of these witnesses are inadmissible . They have also relied another case law AIR 2000 Supreme court 1416 where in it is held that Criminal P.C.(2 of 1974).S.299-Evidence Act(1 of 1872), s.33-Evidence recorded in absence of accused - Admissibility
-Sufficient material to establish that arrest of accused could not be procured as he was absconding -Records showed that summoned were received back with report that witnesses have died- Pr conditions of S.299 complied with-Deposition of deceased witnesses can form basis of conviction.
Therefore in view of this judgment as witnesses named above were alive and their examination in chief was not recorded and were directly tendered for cross examination. Hence evidence of these PWS is inadmissible in evidence.
12. Perusal of evidence of above named witnesses shows that after appearance of both the accused persons in the court these witnesses were called by the prosecution and instead of recording their examination in chief afresh witnesses were directly tendered for cross examination . The charge was framed against accused persons on 6.12.01 both the accused persons have not objected regarding inadmissibility of statement of these witnesses and they have raised 12 this point at the time of final arguments. When witnesses were tendered for cross examination even this point was not raised by the accused persons witnesses be examined under chief examination afresh but perusal of the case laws cited above shows that when the witnesses were called again after appearance of accused persons their examination in chief should have been recorded afresh. But same has not been done in this case. This case is pertaining to the year 1988 if witnesses are called at this point of time again it will amount to fresh trial and as after appearance of accused persons all the above named witnesses have appeared in the witness box and cross examined by accused persons. I am conscious of the fact that if again these witnesses are called and not found traceable or either dead then protection of section 33 of Indian Evidence Act is also not available to the prosecution.
13. Evidence means examination in chief and cross examination. Evidence recorded u/s 299 Cr.PC is an exception to general role that evidence shall be recorded in the presence of accused. To substantiate my view I refer the case law Section 138 envisages that a witness would first be examined-in-chief and then subjected to cross -examination and for seeking any clarification, the witness nay be re-examined by the prosecution.
13There is no meaning in tendering a witness for cross examination only. Tendering of a witness for cross examination as a matter of fact, amounts to giving up of the witness by the prosecution as it does not choose to examine him in chief. There is no procedure whereby the prosecution is permitted to tender a witness for cross examination only, without there being any examination in chief in relation to which such a witness can be cross examined. The effect of witnesses being tendered only for cross examination amounts to the failure of the prosecution to examine them at the trial. Their non examination in our opinion seriously affects the credibility of the prosecution case and detracts materially from its reliability.
Therefore, in view of above discussions and case laws I am of the view that testimony of all the four witnesses is inadmissible in evidence.
14. Now I come to the merits of the case I have gone through the evidence of the witnesses mentioned above and the evidence of PW5 Sunil Kumar who is examined cross examined and after appearance of both the accused persons . There are material contradictions in the testimony of these witnesses. PW1 S.K. Arora he has stated in cross examination that at the time of purchase of plot both Sunil and Chand were present before Sub Registrar and a sum of Rs.42000/- were paid to them by the complainant. He further 14 deposed that after two years he again approached the accused persons for sale of said plot and accused took out the documents from his residence. Complainant visited the residence of the accused where some documents were returned by the accused Dalip. The question which arises to my mind is the fact of forging of documents was told to the complainant by one Pooja Properties. But he has not been cited as witness to prove the fact as to from where the owner of Pooja Properties gathered knowledge about forging the documents. Even the fact of genuineness of the documents which were executed by Sunil in favour of the present complainant has not been proved before this court. PW4 Chand Ram stated in the witness box that after 5/6 months accused Dalip and Ranjeet Singh came to his house and sold the plot to his son and were handed over the papers which were appearing the forged signature of S.K. Arora . He has also stated that when they again purchased their plot accused Dalip shows himself as Surender Kumar Arora at this point I am failed to understand that plot in question was initially sold by Chand Ram and Sunil Kumar came tot he present complainant S.K. Arora through both the accused persons and again they have purchased the said plot through both the accused persons. When they were aware that they have sold their plot to S.K. Arora they have deliberately purchased 15 and relied on the forged documents alleged to be done by accused persons. During their testimony this witness has also stated that earlier also they have sold their plot to Dalip Kumar not to Surinder Kumar Arora even complainant has also said at one point of time prior to execution of documents by Sunil Kumar in his favour they had a meeting with Sunil Kumar and Chand Ram. Therefore as mentioned above there are material contradictions in the testimony of these witnesses these witnesses does not seems to be reliable they have taken one stand in examination in chief other stand in cross examination.
15. Original documents seized by the IO including forged one have also been sent to CFSL for examination. PW3 V.K. Khanna scientific Officer has been examined who has proved his report as Ex.PW3/A. As per report he is unable to express any opinion regarding the question signatures therefore it cannot be said beyond reasonable doubt that the receipt ex.PW2/BA is forged by the accused persons or some one else. Not only this when the original documents were given by the complainant to the accused persons and after some time they have returned the documents. Complainant stating that they were unable to find any eligible buyer for the plot and complainant kept the documents when he again approached one 16 Pooja properties regarding the sale of his plot and he then disclosed that documents which complainant has shown to him were forged one and only then complainant contacted the accused persons and he lodged the complaint in the police. I am failed to understand on what basis Pooja Properties came to the conclusion that documents were forged one. As no forgery was noticed by the complainant when alleged forged documents were handed over to him by accused Persons. The owner of Pooja Properties has not been examined as a witness. Testimony of complainant is not reliable , as there is no corroboration .
16. With these observations benefit of doubt is given to the accused persons and both the accused persons are acquitted. Their BB stands cancelled. Sureties are discharged. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT TODAY DT.23.11.07 (POORAN CHAND) METROPOLITAN MAGISTRATE NEW DELHI.
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